Probation, Parole or Diversion
If you are in custody, or on probation, parole, or diversion program, it is up to the discretion of the correctional facility supervisor, probation officer, or case manager whether or not you can use medical marijuana.
According to California Health and Safety Code § 11362.785 (SB 420):
- Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
- Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
- Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.
To influence the supervisor of your correctional facility to let you medicate during your detention, apply to obtain a state medical marijuana ID card. Suggest ways that your medication would not be a health or safety risk for other prisoners, such as using edibles or tinctures, or setting up a designated medication area. You can also reference the words of former San Francisco County Sheriff Mike Hennessey, who said he would allow terminally ill medical marijuana patients to medicate in jail. But it is unlikely the jail or prison officials will allow you to use medical marijuana.
If you are under house arrest, or in a transitional home, the legal situation is the same. But since the setting is different than jail or prison, it is less likely that your medication will be a health and safety risk, or jepardize the security of the facility.
According to California Health and Safety Code § 11362.795(b) (SB 420)
- Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
- During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
- Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
- The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's state ID cards:
Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation.
If you are a parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, if you reside in one of the listed counties, apply for the state medical marijuana ID card. After you receive the card, make a copy of it (both sides), and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy. Please alert Contact ASA's Legal Coordinator if your Parole Officer finds this to be insufficient.
If you are in a county that doesn't issue the state medical marijuana ID card, try to get a card from a neighboring county that does issue them. Contact the county Department of Health and ask them if they'll issue a card to you. If that doens't work, explain to your Parole Officer that you would get a state medical marijuana ID card if you were able, and that it is not strictly necessary for a parolee to obtain a medical marijuana card to legally use marijuana under the Compassionate Use Act (Prop 215) and SB 420.
Please contact Contact ASA's Legal Coordinator if you reside in a county that does not issue medical marijuana ID cards and your Parole Officer refuses to modify your Parole Conditions.
California Health and Safety Code § 11362.795(a) (SB 420) states:
- Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
- The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
- During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
- The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
Also, there is a favorable case, People v. Tilehkooh, where the court stated that it is an unreasonable probation condition to test medical marijuana patients for marijuana, and it affirmatively allows patients to possess, transport, and cultivate their medicine, as long as the original offense didn't involve marijuana. As an appellate decision, this case is currently the law of the land.
If the court is not forcing you to test for marijuana, and your Probation Officer is unaware of your patient status, you may not want to mention it until you actually have issues. However, if you are being tested or your Probation Officer is aware of your medical marijuana patient status, you should present a copy of your recommendation and print a copy of People v. Tilehkooh and ask your probation officer to put them into your file. Try to create a written agreement with your Probation Officer that exempts marijuana cultivation, possession, and use from your probation conditions.
To be even safer, you can have the attorney that you had for your original offense request a Probation Condition Modification Hearing and ask the judge for an affirmative order to be able to possess, transport and cultivate the amount that your local guidelines allow.
Patient Anecdote: Several patients have told us that their Probation Officers have said that the doctor's recommendations are invalid because the signing doctor was not local or had not been "approved" by the County Probation Department. This is not correct. According to SB 420, any CA-licensed physician or osteopath may issue a valid recommendation, whether or not the County Probation Department approves.
If you are charged with probation violation for marijuana possession or use, bring a copy of People v. Tilehkooh to court along with your recommendation and medical marijuana card. Ask your attorney to ask the DA to dismiss the probation violation charges. If your original offense didn't involve marijuana and you aren't on diversion and your probation violation didn't involve excessive amounts or other complicating factors, then even if the DA doesn't drop the charges, you have a solid case to be found not guilty of probation violation.
Prop 36 or other diversion program
Prop 36 allows some first or second time non-violent adult drug offenders to receive drug treatment instead of incarceration. It is similar to house arrest in that you are enrolled in a Prop 36 program in place of your jail sentence. So you should appeal to the supervisor of your program to allow you to medicate while enrolled in the program. You may want to obtain a state medical marijuana ID card and provide a copy to the supervisor. Also present your recommendation and a copy of People v. Tilehkooh. However, since the mission of Prop 36 is drug treatment the administrators may not be supportive of medical marijuana. It is unlikely you will be allowed to use medical marijuana while on Prop 36.